IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

David Judd, :

Plaintiff : Civil Action 2:12-cv-00050

v. : Judge Smith

Commissioner of Social Security, : Magistrate Judge Abel

Defendant :

ORDER

This matter is before the Court on plaintiff David Judd's January 4, 2013

objections to Magistrate Judge Abel's December 18, 2012 Report and Recommendation. 

The Court, having reviewed the record de novo, determines that there is substantial

evidence supporting the administrative law judge's determination that plaintiff Judd is

not disabled within the meaning of the Act. The Court further finds for the reasons set

out below that plaintiff's objections to the Report and Recommendation are without

merit.

In March 2008, the administrative law judge granted David Judd’s fourth

application for disability benefits, finding that he was disabled as of March 9, 2008, his

fifty-fifth birthday, but not before. The administrative law judge found that between

November 2004 and March 2008 Judd retained the ability to perform a reduced range of

work having light exertional demands. When he turned 55 in March 2008, 20 CFR

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416.966 directed a finding of disability because he could not perform a full range of light

work.

Plaintiff filed a civil action in this Court. On September 2, 2010, this Court

remanded the case because the administrative law judge failed to provide good reason

or described the weight he accorded plaintiff's treating physician, Dr. Murray. See case

no. 2:09-cv-00283. In case number 2:09-cv-00283, the Commissioner argued that the

administrative law judge was not required to give good reasons for rejecting Dr.

Murray's opinions because they were outdated and did not concern the relevant time

period. The Magistrate Judge, however, rejected this argument, stating:

As his opinion reflects, the ALJ considered Plaintiff’s disability status only

after November 22, 2004, as he concluded that previous determinations

were final and binding. (R. at 19.) Nevertheless, in making his

determination regarding Plaintiff’s severe impairments, the ALJ relied

heavily on Plaintiff’s medical history before November 22, 2004, including

medical records from 1998. Accordingly, it is clear that the ALJ did

consider this period relevant to his disability determination.4 Cf. Pasco v.

Comm’r of Soc. Sec., 137 Fed. Appx. 828, 839 (6th Cir. 2005) (“[T]he

Government notes that the 1995 and 1996 exams by [the treating

physician] took place well before [the claimant’s] alleged onset date of

November 1999 . . . . However, the ALJ considered evidence from . . .

exams that took place prior to 1999, so it does not appear that the ALJ

necessarily found the earlier exam irrelevant.”). Once again, the date of

Dr. Murray’s questionnaire may have been an acceptable reason for the

ALJ to reject her opinions. The ALJ was procedurally required to articulate

such reasoning, and failed to do so.

Case no. 2:09-cv-00283, doc. 41 at PageID 166.

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Following remand, the administrative law judge held a second hearing on

September 13, 2011. On September 20, 2011, the administrative law judge issued a

decision finding that plaintiff was not disabled prior to March 8, 2008. 

Plaintiff argues that the administrative law judge erred in rejecting the opinions

of his treating physicians, Drs. Murray and Franklin, and his examining physicians, Drs.

Hoy, Frank, Brinker, and Gilliam. Plaintiff argues that the administrative law judge

erroneously concluded that the opinion of Dr. Murray was not entitled to deference

because it was outdated. Although the administrative law judge’s second decision did

not rely on the opinions of the non-examining State agency reviews, Drs. Pangalangan 

and Holbrook, his residual functional capacity assessment in his second opinion was

identical to the one in his first opinion. The administrative law judge incorporated his

March 28, 2008 decision by reference. His March 28, 2008 decision relied upon evidence

from the time period of Murray’s opinion, demonstrating that these opinions were

relevant to plaintiff’s condition in 2004. 

Plaintiff argues that evidence that a claimant was disabled five years to his date

of last insured and that he was disabled five years after his date of last insured

supported a finding that the claimant was continuously disabled. Plaintiff maintains

that there is no indication that his condition improved after Dr. Murray provided his

opinion. Plaintiff contends that Dr. Murray’s opinions were supported by her clinical

findings based on her physical examinations of him. Dr. Murray documented left calf

atrophy, parenthesis, reflex abnormalities, an inability to toe walk on the left, and an

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abnormal gait. Plaintiff also argues that Dr. Franklin, his treating orthopedist, also

opined that plaintiff was disabled. Plaintiff maintains that the opinions of Drs. Hoy,

Frank, Gilliam and Brinker were entitled to deference because they actually examined

plaintiff unlike the State agency reviewing physicians.

The December 18, 2012 Report and Recommendation fairly summarizes the

record, then the Magistrate Judge analyzed plaintiff’s arguments as follows: 

With respect to the opinion evidence, the administrative law judge stated:

Treating physician Dr. Murray completed a physical

capacities assessment on September 21, 2000. Dr. Murray did

not provide any specific functional limitations, but she

opined that the claimant was not “capable of maintaining

employment” due to his physical condition (Prior

Application file, pages 730-738). Dr. Hoy examined the

claimant and completed a Basic Medical Form for ODJFS on

August 11, 2000, and he offered his opinion that the claimant

was limited to a reduced range of work and was

“unemployable” (Prior Application File, pages 752-53).

Consultative physician Dr. Frank examined the claimant on

October 2, 2000, and he offered his opinion that the claimant

could not walk without the use of a quad cane (Prior

application file, pages 754-764). Finally consultative

physician Dr. Gilliam examined the claimant on January 15,

2002, and he offered his opinion that the claimant could sit

and stand “at will,” walk “a little,” and lift and carry 3 to 8

pounds occasionally. Dr. Gilliam opined that the claimant

could handle objects easily, that his speaking and hearing

skills were good, and that traveling was permitted (Prior

Application File, pages 770-781).

The undersigned gives little weight to Dr. Murray when

applying the criteria set forth for the evaluation of treating

source opinions in 20 CFR 416.927 and SSR 96-2p. Drs. Hoy,

Frank, and Gilliam examined the plaintiff on only one

occasion and therefore are not “treating” sources pursuant to

20 CFR 416.927(d). As for Dr. Murray’s opinion, her responses on the

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assessment form failed to address many of the objective criteria related to

the claimant’s condition that the August 2000 questionnaire required. She

also failed to outline specific restrictions regarding the claimant’s

functional work abilities. Moreover, all of the physicians’ opinions

described above are outdated and not connected to the relevant time

period. Even if these physicians’ opinions were supported and wellfounded in objective evidence–which they are not–it cannot be

automatically be assumed that the claimant continued to be disabled from

November 2004 to decision, the objective evidence relating to the relevant

time period supports a conclusion that the claimant is limited to a reduced

range of light exertion. For example, several of these physicians stated that

the claimant required the use of a cane for ambulation, but progress notes

from Ms. Rutan at Mad River Internal Medicine consistently document a

relatively normal gait and no use of a cane between April 2006 and

January 2008 (Exhibits B38F and 42F). Moreover the determination of

disability is a question reserved to the Commissioner, and there is no

indication that nay of these physicians are qualified to offer an opinion on

the claimant’s employability.

(R. 417-18.) With respect to Dr. Brinker, the administrative law judge

stated:

Debra Brinker, M.D. examined the claimant and completed a

Basic Medical Form on July 26, 1999, and she offered her

opinion that the claimant was limited to a reduced range of

sedentary work and was “unemployable” (Prior Application

file, pages 684-685). The undersigned gives little weight to

this opinion as the ultimate conclusion of disability is an

issue reserved for the Commissioner of Social Security.

Moreover, her opinion is outdated, and object findings

during the relevant time period support the conclusion

above that the claimant is capable of performing a reduced

range of light work.

(R. 418.) 

Here, the administrative law judge provided sufficient rationale for

his decision to reject the opinions of Dr. Murray. As plaintiff

acknowledged, examining physicians such as Drs. Hoy, Frank, Gilliam,

and Brinker are not entitled to deference afforded treating physicians. He

concluded that Dr. Murray’s opinion was not relevant because it was not

based on the relevant time period. The administrative law judge noted

other clinical findings made during the relevant time period

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demonstrating that plaintiff remained capable of performing a reduced

range of light work until March 9, 2008. The administrative law judge also

rejected Dr. Murray’s opinion because it failed to identify the objective

criteria and specific restrictions with respect to plaintiff’s functional work

abilities. The administrative law judge’s decision relied on substantial

evidence during the relevant time period to support his finding that

plaintiff could perform a reduced range of light work between November

22, 2004 and March 8, 2008.

(December 18, 2012 Report and Recommendation, pp. 23-25, Doc. 24, PageID 133-35.)

The Magistrate Judge properly concluded that the administrative law judge

provided sufficient rationale for his decision to reject the opinion of Dr. Murray.

Additionally, the Magistrate Judge noted that examining physicians Drs. Hoy, Frank,

Gilliam, and Brinker are not entitled to the deference afforded treating physicians. The

administrative law judge concluded that Dr. Murray’s opinion was not relevant because

it was not based on the relevant time period. Instead, the administrative law judge

relied on other clinical findings made during the relevant time period to reach the

conclusion that plaintiff was capable of performing a reduced range of light work until

March 9, 2008. The administrative law judge also noted that Dr. Murray’s opinion failed

to identify the objective criteria and specific restrictions with respect to plaintiff’s

functional work abilities. Because the administrative law judge’s decision that plaintiff

could perform a reduced range of light work between November 22, 2004 and March 8,

2008 is supported by substantial evidence, plaintiff’s objections are OVERRULED.

Upon de novo review in accordance with the provisions of 28 U.S.C. §636(b)(1)(B),

the Court ADOPTS the Report and Recommendation. Plaintiff's motion for summary

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judgment is DENIED. Defendant's motion for summary judgment is GRANTED. The

decision of the Commissioner is AFFIRMED. The Clerk of Court is DIRECTED to

enter JUDGMENT for defendant. This action is hereby DISMISSED.

 /S/ George C. Smith 

George C. Smith

United States District Judge

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